Search form

Featured Topics

To promote stable, constructive labor-management relations through the resolution and prevention of labor disputes in a manner that gives full effect to the collective-bargaining rights of employees, unions, and agencies.

This unfair labor practice case is before the Authority on the General
Counsel's exceptions to the attached decision of the Administrative Law Judge.
The Judge found that the Respondent did not violate section 7116(a)(1) and (2)
of the Federal Service Labor-Management Relations Statute (the Statute) by
discharging Officer Ray Midder during his probationary period. The Judge
concluded that Midder had not been discharged for engaging in protected
activity. The Judge also found that the Respondent did not violate section
7116(a)(1) of the Statute by telling certain members of the Respondent's police
force that Officer Frank Wards had been discharged as a result of his protected
activity.(2) The Respondent filed an opposition to the General Counsel's
exceptions.

The General Counsel's exceptions dispute the Judge's credibility
findings on which his findings and determinations are based. The demeanor of
witnesses is an important factor in resolving issues of credibility and only
the Judge has had the benefit of observing the witnesses while they testified.
We will not overrule a judge's credibility determination unless a clear
preponderance of all relevant evidence demonstrates that the determination was
incorrect. SeeRedstone Arsenal Exchange, Army and Air Force Exchange
Service, Redstone Arsenal, Alabama, 50 FLRA, 51-52 (1994), and the cases
cited therein. We have examined the record and find no basis for reversing the
Judge's credibility findings.

Upon consideration of the Judge's decision, the exceptions, and the
entire record, we adopt the Judge's findings, conclusions, and recommended
Order.

II. Order

Pursuant to § 2423.29 of the Authority's Regulations and section
7118 of the Federal Service Labor-Management Relations Statute, the Bureau of
Engraving and Printing, Western Currency Facility, Fort Worth, Texas,
shall:

1. Cease and desist from:

(a) Interfering with the right of its employees to engage in lawful
organizing activity by telling employees that their protected activity was to
blame for shift changes, that an employee was discharged because he had engaged
in protected activity, and threatening employees for exercising their protected
rights under the Statute.

(b) In any like or related manner, interfering with, restraining or
coercing its employees in the exercise of the rights assured them by the
Statute.

2. Take the following affirmative action in order to effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute:

(a) Post at its facilities at the Western Currency Facility copies of
the attached Notice on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such forms, they shall be signed by the General
Manager of the Western Currency Facility, and shall be posted and maintained
for 60 consecutive days thereafter, in conspicuous places, including all
bulletin boards and other places where notices to employees are customarily
posted. Reasonable steps shall be taken to insure that such Notices are not
altered, defaced, or covered by any other material.

(b) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Dallas Regional Office, Federal
Labor Relations Authority, 525 Griffin Street, Suite 926, LB 107, Dallas, TX
75202-1906, in writing, within 30 days form the date of this Order, as to what
steps have been taken to comply herewith.

IT IS FURTHER ORDERED that, except as specifically found above, all
other allegations of the complaint in DA-CA-30545 are dismissed.

NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the Bureau of
Engraving and Printing, Western Currency Facility violated the Federal Service
Labor-Management Relations Statute and has ordered us to post and abide by this
notice.

We hereby notify our employees that:

WE WILL NOT interfere with the right of our employees to engage in
lawful organizing activity by telling employees that their activity was to
blame for shift changes, that an employee was discharged because he had engaged
in protected activity, or threatening employees for exercising their protected
rights under the Statute.

WE WILL NOT in any like or related manner interfere with, restrain or
coerce our employees in the exercise of their rights assured by the Federal
Service Labor-Management Relations Statute.

_____________________________(Agency or Activity)

Date:______________ By:___________________________

(Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of
posting and must not be altered, defaced or covered by any other material.

If employees have any questions concerning this Notice or compliance
with any of its provisions, they may communicate directly with the Regional
Director, Dallas Regional Office, Federal Labor Relations Authority, whose
address is: 525 Griffin Street, Suite 926, LB 107, Dallas, TX 75202-1906, and
whose telephone number is: (214) 767-4996.

This proceeding, under the Federal Service Labor-Management Relations
Statute, Chapter 71 of Title 5 of the United States Code,
5 U.S.C. § 7101, etseq.(1), and the Rules and Regulations
issued thereunder, 5 C.F.R. § 2423.1, etseq.,
concerns whether the charging parties were discharged during their probationary
periods because they had engaged in protected activity, namely, that they had
openly campaigned for recognition of the Combined Law Enforcement Association
of Texas [CLEAT] and whether Respondent made threatening statements to
employees that, in essence, they would suffer if they engaged in organizing a
union.

Case No. DA-CA-30471 [Frank Wards] was initiated by a charge filed on
March 1, 1993 (G.C. Exh. 1(a))and by a First Amended charge, filed on
July 21, 1993 (G.C. Exh. 1(e)), each of which alleged violations of
§§ 16(a)(1) and (2) of the Statute. Case No. DA-CA-30545 [Ray E.
Midder] was initiated by a charge filed on March 17, 1993, which alleged
violation of §§ 16(a)(1) (G.C. Exh. 1(c)) and by a First Amended
charge, filed on July 20, 1993 (G.C. Exh. 1(g)), which alleged violations
of §§ 16(a)(1) and (2) of the Statute. The Order Consolidating
these cases and the Consolidated Complaint and Notice of Hearing issued on
January 14, 1994 (G.C. Exh. 1(i)) and set the hearing for
February 14, 1994, pursuant to which a hearing was duly held on February
14, 15 and 16, 1994, in Fort Worth, Texas, before the undersigned.

All parties were represented at the hearing, were afforded full
opportunity to be heard, to introduce evidence bearing on the issues involved,
and were afforded the opportunity to present oral argument which Respondent
exercised. At the conclusion of the hearing, March 16, 1994, was fixed as the
date for mailing post-hearing briefs, which time was subsequently extended, on
motion of Respondent, to which the other parties did not object, for good cause
shown, to March 31, 1994. Respondent and General Counsel each timely mailed an
excellent brief, received on, or before, April 8, 1994, which have been
carefully considered.

General Counsel submitted with his Brief corrected pages 6, 7 and
8. On these pages, reference had been made to dates in 1993, whereas, the
actual dates were in 1992. Corrected pages 6, 7 and 8, which correct the year
to read 1992, have been substituted as requested. By motion, undated, but
served on April 11, 1994, and received on April 15, 1994, General Counsel
moved to correct the transcript by removing Respondent Exhibit 13 from the
Exhibit File for the reason that, although identified, it was never offered or
received into evidence. There was no opposition to General Counsel's motion
and, accordingly, Respondent Exhibit 13 has been removed from the Exhibit
File. By motion dated April 11, 1994, and received on April 15, 1994,
General Counsel moved to Strike the following portions of Respondent's
Brief:

"1. Page 13 from the second paragraph beginning, 'Midder
provided a second statement . . .' to the end of the page.

"2. Page 14 in its entirety.

"3. The first sentence on page 15.

"The above described portions of Respondent's Brief are followed by
references or refer to Respondent's Exhibits 4 and 5 . . . [which]
were rejected at hearing and are not part of the record in this case
(TR 371, 376). Since the above portions of Respondent's brief refer to, or
are based upon, documents which are not evidence in this case, . . .
General Counsel's Motion to Strike these portions should be granted." (General
Counsel's Motion To Strike).

On May 10, 1994, Respondent served an Opposition To General
Counsel's Motion to Strike Portions of Respondent's Brief which was received on
May 13, 1994. I agree with Respondent that the reference in the first full
paragraph on page 13 to "R-4" was a typographical error and should have
read, "R-3", as R-3, which was received in evidence, was signed and sworn to on
November 4, 1992, whereas, R-4, which was rejected, had been signed and
sworn to on November 5, 1992. Accordingly, the first full paragraph on
page 13, beginning, "Midder provided . . .", as corrected to
show "R-3", rather that "R-4", will stand. I further agree with Respondent
that, inasmuch as the first sentence of the second paragraph beginning on
page 13, "In his October 28 statement . . .", is, indeed,
found in his October 28, 1992, statement which was received in evidence as
Respondent Exhibit 2, this sentence should stand; however, I fully agree
with General Counsel that the remainder of this paragraph beginning with the
sentence, "Later that day . . ." on page 13, all of page 14
and the first sentence on page 15, for the reasons stated by General
Counsel, and which Respondent does not dispute, should be, and they are hereby,
stricken.

On June 2, 1994, Charging Party Frank Wards filed a motion to
withdraw charges in Case No. DA-CA-30471, stating that,

"1. Movant FRANK WARDS, after having conferred with Richard W.
Carter, his Representative of Record in the hearing in this cause, has elected
to enter into a negotiated settlement with Respondent herein.

"2. Movant FRANK WARDS no longer wishes to pursue or to have pursued
any and all charges he has previously filed against Respondent which have been
tried in this cause.

"3. Movant FRANK WARDS believes that to grant this Motion and to
dismiss the charges and cause would be in the best interests of the Charging
Party, the Respondent, and the United States of America."

General Counsel, on July 6, 1994, filed a "Motion to Remand Case to
the Region", received on July 11, 1994, in which he states, in part,

". . . It is the position of the General Counsel that the
Settlement Agreement entered into by the Respondent and Charging Party Wards
effectuates the purposes and policies of the Federal Service Labor-Management
Relations Statute and fully remedies the allegation in Case No. DA-CA-30471
that Wards was discharged during his probationary period because of his
protected activity. Accordingly, it is requested that the Administrative Law
Judge remand Case No. DA-CA-30471 to the Dallas Regional Director for further
action consistent with the terms of the Settlement Agreement . . .
The remaining complaint will continue to allege that Midder was terminated
because of his protected activity. The complaint also continues to allege the
Section 7116(a)(1) violations set forth in paragraphs 14 through 20.

"If the Administrative Law Judge remands Case No. DA-CA-30471
. . . the complaint . . . will be amended in the following
manner:

"Paragraphs 2, 6, 7 and 22 of the complaint will be deleted.

"Paragraphs 21 and 24 of the complaint will be amended to delete
any reference to Wards.

"The remaining paragraphs remain unchanged.

. . . ."

General Counsel's request that Case No. DA-CA-30471 be remanded to the
Dallas Regional Director for further processing, notwithstanding that General
Counsel states that the motion to remand was not opposed by Charging Parties
Ray E. Midder or Frank Wards, or by Respondent, is unnecessary and for that
reason is denied; however, General Counsel's motion will be treated as a
request for withdrawal of the Complaint in Case No. DA-CA-30471, pursuant to
§ 2423.19(p) of the Regulations, 5 C.F.R. § 2423.19(p),
which request is hereby approved, and as a motion to amend the Consolidated
Complaint, which is also granted, both actions being fully consistent with the
motion of Charging Party Frank Wards. Accordingly, the Consolidated Complaint
is hereby amended as follows:

1. Paragraphs 2, 6, 7 and 22 are hereby deleted.

2. Paragraphs 21 and 24 are hereby amended by deleting the
words: "Wards and" in each paragraph.

3. The remaining paragraphs of the Consolidated Complaint, including
the § 16(a)(1) violation set forth in paragraphs 14 through 20,
as well as the § 16(a)(2) allegations of Paragraph 23, 24, and
26 concerning Ray E. Midder, remain unchanged.

Upon the basis of the entire record, including my observation of the
witnesses and their demeanor, I make the following findings and
conclusions:

Findings

1. The Bureau of Engraving and Printing (hereinafter, "Bureau") is a
part of the Department of the Treasury and its function, principally, is to
print United States currency, other securities and postage stamps.
Historically, although there had been mints for the coinage of United States
coins, operated by the Bureau of the Mint, another component of the Department
of the Treasury, located outside Washington, D.C., paper currency was printed
only in Washington, D.C. Thus, the bargaining unit of police officers was
located wholly within the District of Columbia and was represented by the
American Federation of Government Employees, Local 29 (hereinafter,
"Local 29").

2. Some time before 1989, construction of a new satellite operation,
the Western Currency Facility (WCF), in Fort Worth, Texas, was begun. In
November 1989, Mr. Ray E. LaVan, Jr. was made General Manager of WCF
(Tr. 399). Prior thereto, he had been employed by the Bureau in
Washington, D.C., for about 25 years in various capacities, most recently
as Chief of Production Management (Tr. 400).

3. While the actual production of currency at WCF did not begin until
the fall of 1990, when presses were installed (Tr. 400), the WCF police
force had been established in 1988 or 1989 (Tr. 401) during construction
of the WCF. Initially, a number of police employees were transferred from
Washington, D.C., to constitute the nucleus of the new WCF police force
(Tr. 21), including, Mr. Jesse Lee Robinson, Jr. who, in 1989, as
Inspector, was placed in charge of the WCF police unit (Tr. 557).
Mr. Robinson had been President of Local 29 for seven years
(Tr. 570), had been Chief Negotiator for Local 29 in the negotiations
resulting in the September 14, 1983, Agreement (Res. Exh. 12), which
Agreement remains in effect (Tr. 589), and had risen through the ranks to
become Inspector.

4. Because Local 29 was the exclusive representative of all Bureau
police employees and the Bureau was starting a new operation in Fort Worth, for
which it was transferring employees as well as hiring new employees in Fort
Worth, Local 29 and the Bureau had discussions regarding the effect of the
contract on the covered WCF employees (Tr. 588) and agreed to extend to
the employees at WCF the terms of the current collective bargaining
agreement.

5. The Bureau's uniformed police force is a para-military organization
with ranks of private, corporal, sergeant, lieutenant and Inspector, the
highest ranked uniformed position, who reports directly to the Manager of
the Security and Police Services Branch (Tr. 19, 412, 414).

6. When Mr. LaVan came to WCF in November 1989, as General Manager,
there were about ten or twelve police officers and by October 1992, there were
approximately 50 (G.C. Exh. 2). Security is required on a twenty-four hour
basis and, when fully staffed, WCF utilizes three 8-hour shifts per day: day,
evening and midnight. However, Mr. LaVan stated that the number of
officers available varied widely from time to time as the result of the loss of
police officers to higher paying production jobs, attendance at the required
eight week police training course at Brunswick, Georgia, etc.
(Tr. 402-403) so that the shift pattern was constantly changing from
eight-hour shifts to twelve-hour shifts, depending on the availability of
people (Tr. 404-405). In like manner, because of the lack of personnel,
there were times when Respondent was unable to man every post and had to close
down posts (Tr. 404).

7. Although, as noted above, the parties had agreed to extend the terms
of the current collective bargaining agreement to WCF employees and during
orientation new police officers hired at WCF were given a copy of the contract
between the Bureau and Local 29 and were told that their exclusive
representative was Local 29 (Tr. 107, 137, 213), Local 29 did
not have any local representation at WCF until the summer of 1992 when WCF
police officers Israel Garcia and Jonathan Ferrell were appointed stewards
(Tr. 562, 563); however, both Garcia and Ferrell resigned as stewards
after about one month. In the meantime, WCF police officers, unhappy with the
quality of representation provided by Local 29 (Tr. 20, 214), began
to look for an alternative union. The Combined Law Enforcement Association of
Texas, Communications Workers of America, AFL-CIO (hereinafter, "CLEAT") was
familiar to some WCF police officers and they initiated a CLEAT membership
campaign. The CLEAT membership campaign reached a peak in September and October
1992 (Tr. 25).(2)

8. Mr. Samuel T. Cobb, III, who began work as a police officer at
WCF in April, 1992 (Tr. 19), was, beginning in late August or early
September, the organizer or contact person for CLEAT (Tr. 25). By letter
dated October 29, 1992, CLEAT gave Respondent notice that Mr. Cobb
had been designated CLEAT activity contact at WCF (G.C. Exh. 3). Mr. Cobb
solicited membership, handed out literature, signed up members and collected
money in the ready room in the presence of super-visors (Tr. 27-29).
Messrs. Tony Kutche, Donald Stallings, Frank S. Wards and Ray E. Midder joined
CLEAT and became active on behalf of CLEAT (Tr. 30-31, 109, 214, 320) with
Messrs. Stallings and Midder being the points of contact for the evening shift
(Tr. 30, 110) and Mr. Kutche the point of contact for the graveyard shift
(Tr. 214). Mr. Stallings testified that on at least two or three occasions
around the end of September or early October 1992, Mr. Wards and Mr. Cobb
announced to all employees present in the ready room that CLEAT points of
contact were Cobb, Wards, Midder and Stallings and Lieutenants Stout and Causey
were present at the time of the announcements and, in addition, Lieutenant
Klapp possibly was present (Tr. 111). Mr. Midder testified that while
he could not say for sure that any supervisor saw him distrib-uting CLEAT
magazines (Tr. 322), he kept the CLEAT literature in his locker and, in
early October, 1992, Lieutenant Causey, whose locker was adjacent to his
(Midder's), told him, ". . . you need to be careful about what you
keep in your locker because the supervisors do go through them when the
employees aren't around." (Tr. 320-321). At this time, Mr. Midder's locker
was open and Mr. Midder stated that Lieutenant Causey could see the CLEAT
literature in his locker (Tr. 321). Inspector Robinson, who first learned
of CLEAT from Officer Garcia, who, together with Mr. Ferrell, had been
appointed Local 29 stewards (Tr. 562-563), after notification (G.C.
Exh. 3) of Mr. Cobb's designation as CLEAT representative, talked to
Mr. Cobb and told him that he had not received any notification indicating
he was a representative for the WCF police unit, that he did not recognize his
position as a representative and only recognized Local 29 (Tr. 563).
Moreover Inspector Robinson testified that he was not aware of any bargaining
unit employee other than Mr. Cobb being active on behalf of CLEAT and,
specifically, that he did not associate either Mr. Wards or
Mr. Midder with CLEAT (Tr. 564).

Ms. Carol Williamson, Manager of Security and Police Services(3) testified that she was aware that
Mr. Cobb was active on behalf of CLEAT (Tr. 487, 494, 503) but that
she did not know of, nor was she aware of, any activity on behalf of CLEAT by
Mr. Midder (Tr. 495), or by Mr. Stallings (Tr. 495-496), or by
Mr. Kutche (Tr. 496). Ms. Williamson further testified that she
knew nothing about CLEAT; that WCF was represented by Local 29; and that
when she received an admin-istrative inquiry from a supervisor who had been
asked by employees if they could have a CLEAT representative present during an
investigation, she had told the supervisor no, that AFGE, Local 29 was the
recognized bargaining representative, not CLEAT (Tr. 495).

9. As Mr. LaVan stated, the shift pattern changed from twelve-hour
shifts to eight-hour shifts depending on the availability of people (Tr.
404-405). Nevertheless, the record is wholly ambiguous and contradictory as to
when shift patterns changed, i.e. when employees worked 12-hour shifts
and when they worked 8-hour shifts, and the record is equally ambiguous and
contradictory as to the effect, if any, on overtime of the change of shifts and
when employees rotated on shifts. The only "Daily Attendance and Detailed
Report" introduced as an exhibit was for Mr. Wards, is dated
February 23, 1992, and covers the pay period ending February 22, 1992
(Res. Exh. 8). Mr. Wards' Daily Attendance record shows that for the
first work day of the pay period (Monday) and his fifth work day of the pay
period (Saturday) (he was off on Wednesday) he worked an 8-hour shift; however
his Daily Attendance record strongly suggests that on the other six days he
worked during the pay period (he was absent on sick leave two days) he was
working a 12-hour shift. Mr. Wards' Payroll Statements for pay roll
periods ending January 25, 1992, through December 25, 1992, were
introduced (G.C. Exh. 10) and these records show overtime hours.
Mr. Wards had 18, 40 , 75 , 23 , 34 , 28 , 25 and 28 hours overtime each
payroll period through the payroll period ending May 16, 1992. His
overtime hours for the payroll period ending May 30, were 4 ; for the
payroll period ending June 13, were 5 hours; for the payroll period ending
June 27, were 13 hours; for the payroll period ending July 7, were 3
hours; and for the payroll period ending August 8, were 11 .
Mr. Wards was on leave through the payroll period ending October 3.
Beginning with the payroll period ending October 17 his overtime hours
were: 16, 25, 16 , 4 and 21 (G.C. Exh. 10).

Mr. John H. Griffith in his Report of Investigation, which is
discussed hereinafter, did note that,

Mr. Griffith's Report of Investigation does not indicate how long the
8-hour shifts remained in effect and the record shows that WCF was, again,
working 12-hour shifts by August or September 1992 (Tr. 181, 447).

Mr. Edward Barnes stated that they had been on 12-hour shifts when he
came in October 1992 (Tr. 182); that, "We went to eight-hour shifts -- I
don't know the exact dates but we did go to eight-hour shifts at one time, then
we went back to twelve-hour shifts." (Tr. 182); that when he went to the
police academy in September 1992, they were on 12-hour shifts; and that when he
got back from the academy in November, he believed we were then on 8-hour
shifts (Tr. 181). Mr. Barnes stated he did not like 12-hour shifts
and had sought to get them eliminated; however, he stated that you earn more
overtime on 12-hour shifts (Tr. 181).

Mr. Tony Kutche stated that they went to assigned 8-hour shifts in
December 1992 (Tr. 217), and then just before Christmas 1992, went to rotating
shifts (Tr. 220); but earlier, Mr. Kutche inferred that at the time of the
CLEAT meetings at the Holiday Inn in November 1992, they were working 8-hour
shifts because "They normally had three meetings each time . . . so
it would coincide with the shift that was either coming on duty or going off
duty so everybody could attend" (Tr. 215); however, see General Counsel
Exhibit 6 which shows meetings for, "THURSDAY, NOVEMBER 12th 1:00
P.M. and 3:15 P.M. . . ." Mr. Cobb stated that they went to
8-hour shifts on, or about, October 15, 1992 (Tr. 50). He further
stated that the change from 8 to 12 hour shifts did not affect overtime; that
it was the closing down of posts that hurt them financially by the loss of
overtime (Tr. 83-84) and that this occurred around the 15th of October
(Tr. 50). However, Mr. Wards overtime earnings for the payroll
periods October 4-17 through the payroll period for
November 29-December 12 (G.C. Exh. 10), as set forth above, do
not support Mr. Cobb's assertion. Ms. Lacelle Howard stated that rotating
shifts began in January 1993 (Tr. 199) or February 1993
(Tr. 199).

Mr. Roger Lee Knickerbocker began at WCF on August 24, 1992
(Tr. 161) and stated that during the "Mad Laugher" investigation, which he
said was conducted from about September to October 1992, ". . . they
put us on rotating shifts." (Tr. 164; 165-166). Ms. Williamson
testified that they did not go from 12-hour shifts to 8-hour shifts until April
or May 1993 (Tr. 492). She testified that,

"A It was sometime in the spring. We did go from the 12 to -- two 12s
to three eight-hour shifts. We had been expending an awful lot of overtime.
Mr. LaVan was after us to curb our spending, so to speak, and we finally
at that point reached a large enough man-power or staffing that we could staff
the posts with sufficient numbers of officers on each shift."
(Tr. 492-493).

Mr. Craig Straight, who came to WCF in about August 1992 (Tr. 447),
stated that when he started work he was on a 12-hour shift (day); that two or three months later he went to an
eight-hour evening shift (Tr. 446-447); but Lieutenant Kevin Gene Klapp
believed we were on 12-hour shifts throughout 1992 (Tr. 552).

10. During the "Mad Laugher" investigation, which is discussed
hereinafter, some employees, including Mr. Midder (Tr. 487-488)
wanted to append a statement ". . . more or less pleading the
Fifth Amendment" (Tr.487), which Mr. Midder said, ". . . Sam
Cobb told him to put it [G.C. Exh. 4] on there." (Tr. 488).
Accordingly, Mr. Cobb testified that on October 22, 1992, he was
called in to meet with Ms. Williamson, Inspector Robinson and
Mr. John Griffith (Tr. 60) at which time he was told that,
". . . CLEAT was a state labor organization and was not recognized by
the Bureau. They informed me that the attorneys or representatives from CLEAT
would not be allowed on their property, and they had no authority or power
. . . I think that is all the first meeting." (Tr. 61).

Thereafter, by letter dated October 29, 1992 (G.C. Exh. 3),
CLEAT gave Respondent notice that Mr. Cobb had been designated CLEAT
representative. Mr. Cobb stated that on November 2, 1992, Inspector
Robinson called him in early in the morning and told him they had just received
the CLEAT letter and, ". . . that CLEAT would not be recognized and
their people would not be allowed to come on the property. He said he would not
recognize me and I would not be allowed to represent anyone or he wouldn't even
discuss matters with me." (Tr. 61-62). Inspector Robinson's version, while
wholly consistent with Mr. Cobb's, was also a bit different, as follows,
"I talked with Sam Cobb and I informed -- I met with him in my office and told
Sam that unless -- I had not received any notification from our labor relations
division indicating that he was a representative for the police unit, and I did
not recognize his position as a representative. I only recognized Local 29
AFGE representative." (Tr. 563).

11. Mr. Wards was terminated effective December 23,
1992 (G.C. Exh. 7). In April 1993, some months after his discharge,
Mr. Wards appeared on television on a Friday evening and made comments about
the lack of security at WCF. Mr. LaVan called Ms. Williamson quite
disturbed by the attack on WCF's security and suggested that she meet with all
officers at roll call on Monday (Tr. 493-494). Ms. Williamson met
with officers at roll call on Monday and, in response to a question replied,
". . . that our security posture was always important to us, it was
unfortunate that his [Mr. Wards'] timing did cast aspersions on the rest of the
force, however, he was free to say whatever he pleased because he was a
disgruntled, former employee. I did say that." (Tr. 494).

12. Sergeant Curtis Leon Sales admitted talking to a Mr. James
David Cooper, a contract safety specialist for Respondent (Tr. 148), about
Mr. Wards' termination and stated as follows:

"A I told him that -- well, we (sic) was talking about -- he
mentioned that he heard that it was for participating in Union activities. I
said, Well, you hear a lot of things. You believe what you want to hear, pretty
much.

"Q Did you tell him that Mr. Wards was fired because he was running
around and couldn't keep his mouth shut?

"A He assumed that. He put that in his own context.

"Q So that -- you don't recall that as --

"A I remember having a discussion with him, you see, and he took it
and ran with it." (Tr. 583).

Mr. Cooper testified that Sergeant Sales told him, ". . .
Frank [Wards] had been fired because he was a union
organizer. . . ." (Tr. 151). Mr. Cooper was a credible
witness, Sergeant Sales did not deny having told Mr. Cooper that
Mr. Wards was fired because of activity on behalf of CLEAT, and,
accordingly, I credit Mr. Cooper's testimony.

13. It is asserted that Respondent, in September or October, 1992,
changed from 12-hour shifts to 8-hour shifts and it is alleged in
Paragraph 17 of the Complaint that Respondent in, or about, September
1992, told employees that a change in shifts would be in effect until the
employees learned how to act, etc. While there was testimony of a
September or October 1992 shift change, the weight of the testimony and
evidence shows that there was no shift change until some time in 1993.
Paragraph 18 of the Complaint alleges that in March or April 1993, Ms.
Williamson told employees they were going back on 12-hour shifts and they were
going to be forced into 6-day weeks and they could thank Frank Wards who was
just a disgruntled employee and CLEAT. The record does not show any change in
March or April from 8-hour shifts back to 12-hour shifts. To the contrary, the
record shows that Respondent changed from 12-hour shifts to 8-hour shifts and,
in April 1993, after Mr. Wards had made critical remarks on a local
television program about the security at WCF, Ms. Williamson met with all
officers at roll call; did say that it was unfortunate that Mr. Wards had cast
aspersions on the WCF police force, but he was free, as a disgruntled, former
employee, to say what he pleased; and, by implication, she told them that the
heightened vigilance and security consciousness was attributable to
Mr. Wards' comments (Tr. 207-208, 494). Ms. Williamson denied
that she ever said employees could thank Mr. Wards regarding a shift
change (Tr. 493); testified that she was never at a meeting when it was
said that employees could thank CLEAT for a shift change (Tr. 502); and
credibly testified that in the spring of 1993, Respondent went from two 12-hour
shifts to three 8-hour shifts to curb spending and because Respondent had
reached sufficient staffing that it could staff each shift (Tr. 492-493).
I credit Ms. Williamson's denials and do not credit the testi-mony of
Mr. Kutche (Tr. 219), which I found unconvincing, demonstrably
incorrect in some respects and overly creative or contrived, or Mr. Barnes
(Tr. 179) because his attribution to Ms. Williamson appeared
contrived. Nevertheless, the record shows, and I find, that Respondent, through
Sergeant Sales,(4) did inform employees, that CLEAT was responsible for shift
changes as Mr. Barnes stated (Tr. 177), as Mr. Cobb stated
(Tr. 50), and as Sergeant Sales, not only did not deny, but in effect
admitted. Thus, the record shows as follows:

"Q Okay. Do you recall any discussion of a change in shifts that
occurred either in September 1993 or September 1992?

"A Yes, I remember a shift change. Yes.

"Q What was the change to, or what was it from?

"A It was passed down by management why we had the shift change. Yet
and still, officers wanted to run to me to see if they can dig for some
information, and I gave them what they wanted to hear: a bunch of
garbage, because it was none of their business.

"They already knew why the shift change is being implemented.

"Q Why was that particular change?

"A That was a management decision, you know.

"Q So you didn't really know why?

"A No." (Tr. 583-584).

14. Paragraph 20 of the Complaint alleges that, "In May 1993,
Wright informed employees that he had attended meetings with Williamson and
Robinson, back in 1992, and that in the meetings it was decided that Wards was
a troublemaker and they needed to get rid of him and that it was then discussed
how to accomplish that goal." (G.C. Exh. 1(i), Par. 20) (See, also,
First Amended Charges, G.C. Exhs. 1(e) and (g)). Mr. Knickerbocker, who
was a wholly credible witness, testified that in May, 1993, Mr. Ken
Wright, the training officer, came to his post and the following ensued,

"A He came in and sat down and first asked me how I was doing
and things to that nature, and then he went into that him and Carol Williamson
was on the outs and he told me that he had sat in a meeting with Lt. Klapp,
Carol Williamson, and Inspector Robinson, and that they were plotting to
terminate Officer Wards before, way before that he was terminated. And then he
said that the whole thing was a set-up, that Officer Wards was set up.

"Q What was your reaction when Training Officer Wright made these
statements to you? Did you ask him any questions?

"A No, I didn't ask him anything. I was surprised he even came in
there and talked to me.

"Q Why were you surprised?

"A Because I don't know Ken that well -- Mr. Wright -- and he
hardly ever talks to me. (Tr. 167-168).

. . .

"Q And did Officer Wright elaborate at all as to why -- you said they
were plotting to remove Frank Wards -- did he elaborate on why they were
plotting?

"A No, ma'am.

"Q After Officer Wright made these statements to you, what happened
next?

"A He started to talk about training and the Bureau purchasing new
weapons for the officers and then he got up and left.

"Q And do you know if he ever made statements like that to any other
officers?

"A Yes, ma'am.

"Q Tell me about that.

"A Sam Cobb and Ron Brown, when we were in the ready room one day,
told me that he told them the same thing." (Tr. 169).

Ms. Williamson denied that she had any conversation with Inspector
Robinson in which she stated that Frank Wards was a troublemaker
(Tr. 491-492).

At the hearing, Mr. Wright testified that on December 23, 1992,
after he had walked Mr. Wards out of the facility, Ms. Williamson
said it was going to be a good Christmas because Mr. Wards was fired
(Tr. 232); that she made references to other employees, which he
characterized as a "hit list"; that she said,

"A Yes. She said it was one down and she had I guess about five more
to go, and she mentioned other police officers by name.

"Q And what were the other five that she had to go?

"A It was Erickson, Midder, Teischman.

"JUDGE DEVANEY: Who?

"THE WITNESS: Sgt. Teischman, Lacelle Howard. It could have been
someone else but I would have to look at my own notes.

"Q BY MR. MERLI: Did she mention Don Stallings?

"A Yes, Stallings.

"Q How about Sam Cobb?

"A And Cobb, yes. Those were the other names. . . .
(Tr. 233)

. . .

"Q In this conversation. I am talking about this particular
conversation where she said one down, five to go, named the five employees, was
happy, it was going to be a great Christmas. What did she say about the union
and Wards?

"A That he was a troublemaker because he was always talking about
starting a f------ union -- those were her exact words."
(Tr. 234).

I did not find Mr. Wright a credible witness. His testimony was
hopelessly at odds with what he told Mr. Knickerbocker and what
Mr. Knickerbocker stated he had told Messrs. Cobb and Brown. A
purported meeting with Ms. Williamson, Inspector Robinson and Lieutenant
Klapp had become a discussion with Ms. Williamson; a plot to terminate a
single person - Officer Wards - has become a plot involving other police
officers. If he had been told of a vendetta involving more than one it is not
believable that he would have told Messrs. Knickerbocker, Cobb and Brown of
only Wards, especially that he would not have told Mr. Cobb, whom he
claimed was also the object of the vendetta. Because his testimony was not
credible, I do not credit Mr. Wright's testimony for any purpose.

15. On October 21, 1992, Respondent received a report that one
police officer, Hilton Moore, had threatened to do bodily harm to one or more
other police officers, Rodney Williams and/or Mr. Cobb (Res. Exh. 1;
Tr. 36-37, 566). General Manager LaVan was informed, and, in the course of
the oral briefing, learned of the "Mad Laugher", which was a telephone call to
a police officer, generally on duty, but sometimes at the officer's home or in
the ready room (Tr. 418, 432, 433), when the telephone was picked up the
caller would emit loud, insane-sounding laughter and hang up without otherwise
speaking. Mr. LaVan stated that he was, ". . . a little bit
distressed because I didn't really feel that the mad laugher kind of situation
was a proper activity for supposedly mature people of, you know, judgment to be
engaging in. And so I had directed the security officer to look into it, and I
wanted to find out who was involved in it and who was responsible."
(Tr. 406). Mr. John Griffith, investigator and security specialist
for the Bureau, on October 23, 1992, was assigned by Mr. LaVan to
investigate both the threats of bodily harm and the "Mad Laugher", to be
assisted by Ms. Williamson (Tr. 359, 479). Mr. Griffith's
investigation began on October 23 and continued into early December 1992,
culminating with his Report of Investigation, dated December 8, 1992 (Res.
Exh. 1).

Inspector Robinson initially investigated the bodily harm threats;
Officer Moore was taken out of uniform, on October 23, 1992 (Tr. 37),
and assigned to other duties, until it could be determined if there was
any validity to the alleged threats (Tr. 496, 566); and Inspector
Robinson interviewed ten to fifteen officers in regard to Officer
Moore (Tr. 567). Officer Moore, when questioned, had told Lieutenant
Stout that Officer Rodney Williams was a "Mad Laugher" (Tr. 421). This had
led to a confrontation between Moore and Williams (Tr. 422, 423, 424), and
more than 100 "Mad Laugher" calls to Officer Moore in a period of about
one week (Tr. 432, 433). Having found no proof that Officer Moore had made
any threats, he was returned to police duty on November 10, 1992
(Tr. 38). While Inspector Robinson's investigation of the Moore
allegations was taking place, Mr. Griffith's investigation both of alleged
threats of bodily harm and the "Mad Laugher" was also taking place
(Tr. 568). In the course of Mr. Griffith's investigation, Officer
Cobb was taken out of uniform on October 27 (Tr. 37) in connection
with bodily harm threats, including his calls to the Assistant United States
Attorney in Fort Worth (Res. Exh. 1, p. 4; Tr. 496). Officer
Cobb was returned to uniform in mid-December 1992 (Tr. 37).

In his investigation, Mr. Griffith interviewed 40 to 45 employees
(Tr. 357, 358) and took about 63 statements (Tr. 357-358). In
connection with the "Mad Laugher" matter, Officer Stallings and Sergeant
Erickson were also removed from uniform(5) (Tr. 496, 497). As the result of the investigation,
Ms. Williamson recommended that Sergeant Erickson, Officers Cobb, Midder
and Stallings be terminated (Res. Exh. 1, p. 9; Tr. 480, 485).
On review, Respondent determined that the preponderance of the evidence did not
support the recommended removal of Officer Cobb and the recommendation was
rejected (Tr. 592). On the basis of his oral reply, the deciding official
mitigated the recommended removal of Officer Stallings to a 14-day suspension
(Tr. 593-594) and Mr. Stallings sought, and was given, a higher
paying job in production (Tr. 132-134, 498). On review, the proposed
removal of Sergeant Erickson was approved and he was discharged (Tr. 386).
On review, the proposed removal of Mr. Midder was approved (Tr. 591)
and Mr. Midder was terminated effective February 5, 1993 ". . .
for making false statements in matters of official interest, and improper
conduct. . . ." (G.C. Exh. 12).

In addition to recommending terminations, as set forth above,
Ms. Williamson made a number of recommendations for less severe
disciplinary actions, including letters of reprimand and oral counselling
(Tr. 479, 490). These recommendations were also reviewed (Tr. 480,
590, 591) and an unspecified number of letters of reprimand were issued by
Ms. Williamson (Tr. 490) and Inspector Robinson gave oral counselling
to six employees and oral admonishments to two employees (Tr. 568).

Mr. Midder stated that, in addition to himself and Mr. Stallings,
between ten and fifteen other employees were disciplined for "Mad Laugher"
conduct (Tr. 340); but these employees, while a lot of them were members
of CLEAT, "weren't active in distributing the information or anything like
that." (Tr. 341).

Conclusions

There is no doubt that Mr. Midder was active on behalf of CLEAT, a
labor organization, U.S. Department of The Treasury, Bureau of Engraving and
Printing and American Federation of Government Employees, AFL-CIO and
Combined Law Enforcement Association of Texasetal.,
49 FLRA 100 (1994) (See, also, §§ 2422.5 and 2422.17 of the
Authority's Rules and Regula-tions, 5 C.F.R. §§ 2422.5,
2422.17), although he certainly was not the moving force and visible,
designated representative as Officer Cobb was. He did distribute CLEAT
literature and, with Mr. Stallings, was a point of contact for CLEAT on
the evening shift, and General Counsel has shown that Respondent, through
supervisors such as Lieutenants Stout and Causey, and possibly Klapp, was aware
of Mr. Midder's activity on behalf of CLEAT. Further, General Counsel has
shown that Sergeant Sales and Inspector Robinson had made statements to the
effect that CLEAT was to blame for shift changes and that Sergeant Sales had
told a contract safety specialist that Mr. Wards had been discharged
because of activity on behalf of CLEAT. Mr. Midder was discharged which,
General Counsel asserts, was because he engaged in protected activity.
§ 2 of the Statute protects the right of an employee, during non-work
time in non-work areas, to "assist" a labor organization other than the
exclusive representative. Department of Commerce, Bureau of the Census,
26 FLRA 719, 721 (1987); Social Security Administration,
45 FLRA 303, 323 (1992), therefore, Mr. Midder engaged in
protected activity. Without more, General Counsel made a primafacie case of a violation of § 16(a)(2) inasmuch as he showed:
(1) Mr. Midder, against whom the alleged discriminatory action was
taken, was engaged in protected activity on behalf of CLEAT;
(2) Respondent indicated animus toward CLEAT; and
(3) Mr. Midder's protected activity was a motivating factor in his
termination. Internal Revenue Service, Washington, D.C.,
6 FLRA 96 (1981); Letterkenny Army Depot,
35 FLRA 113 (1990) (hereinafter, "Letterkenny").

Of course, as the Authority stated in Letterkenny,
supra,

"Even if the General Counsel makes the required 'prima facie'
showing(6), an agency will not be found to
have violated section 7116(a)(2) if the agency can demonstrate, by a
preponderance of the evidence, that: (1) there was a legitimate
justi-fication for its action; and (2) the same action would have been taken
even in the absence of protected activity. . . ." (35 FLRA
at 118).

The October 22, 1992, report of an alleged threat, or threats, by
one police officer on the life of one or more fellow police officers provoked
an immediate investigation of those alleged threats and the related "Mad
Laugher" conduct which General Manager LaVan did not feel was a proper activity
for supposedly mature people. Mr. LaVan, on October 23, 1992,
assigned Mr. John Griffith, investigator and security specialist for the
Bureau, to investigate both the threats and the "Mad Laugher" activity, to be
assisted by Ms. Williamson. Mr. Griffith's investigation was wholly
independent of CLEAT organizational activity, was not brought about by CLEAT
organizational activity and did not impinge upon CLEAT activity except to note
that eight named officers insisted upon including a paragraph which expressed
their desire to exercise their constitutional right to remain silent under the
Fifth and Fourteenth Amendments; that CLEAT furnished and encouraged the use of
this paragraph; and that CLEAT had not been recognized as a representative.

However innocuous the "Mad Laugher" may have been at its inception, it
proliferated and soon became, as Mr. Griffith stated in his report,
". . . an instrument of harassment and intimidation aimed at a Police
Private [Moore] and a Lieutenant [Stout]. The Police Private was targeted as a
result of being labeled a 'snitch' and the Police Lieutenant because of his
concerted effort to identify and stop the callers." (Res. Exh. 1,
p. 2). The "Mad Laugher" was exhaustively investigated by
Mr. Griffith. General Counsel's assertion that Mr. Griffith's
investigation was suspicious because he, ". . . was required to
obtain the approval of the U.S. Attorney's Office prior to conducting the
investigation. However, no such approval was obtained. As a result, two U.S.
Attorneys met with Griffith. . . ." (General Counsel's Brief,
p. 11), is wholly unwarranted and in part constitutes an egregious
misrepresentation. First, the question concerned the use of the Kalkines(7) Statement (Res. Exh. 2) which
carries with it a grant of immunity from criminal prosecution, i.e.,
". . . the answers I give . . . may not be used against
me in a criminal prosecution. . . ." (Res. Exh. 2,
emphasis in original), and the United States Attorney must approve of the
waiver of criminal prosecution. It is true that Mr. Griffith did not personally
obtain the approval of the United States Attorney; but it is wholly false to
imply that approval had not been obtained. Thus, Mr. Griffith credibly
testified that he had the approval of the Bureau's legal counsel
(Tr. 385); that Bureau policy is that approval can come from the legal
office; and that the legal office confers with the U.S. Attorney
(Tr. 385). Moreover, the investigation by the Department of Treasury's
Inspector General, which in part reviewed the propriety of the use of the
Kalkine Statement (Tr. 384), concluded that, ". . . they found
no improprieties in our investigation or the manner that we were conducting our
investigation and the investigation itself." (Tr. 377) which was confirmed
in a letter to the Director, or Associate Director (Tr. 384). General
Counsel's statement, "two U.S. Attorneys met with Griffith" is an egregious
misrepresenta-tion. The investigators were: investigators from the Department
of Treasury's Office of Inspector General (Tr. 376, 382), not U.S.
Attorneys; moreover, General Counsel's implicit representation that the U.S.
Attorney was investigating, which itself was false, because approval had not
been given for use of Kalkine statements is also false and, as stated above,
contrary to the record.

I am aware that Mr. Cobb testified, interalia, as
stated by General Counsel (General Counsel's Brief, p. 10), that CLEAT was
not recognized by Respondent and that CLEAT officials would not be allowed on
Respondent's property (Tr. 61); but, contrary to General Counsel's implied
impropriety, Respondent was then legally obligated to recognize only
Local 29 as the exclusive representative of its employees, could not
recognize CLEAT and could not permit CLEAT access to its premises unless and
until it had attained equivalent status with Local 29. § 16(a)(3) of
the Statute; Social Security Administration, 45 FLRA 303, 315
(1992); American Federation of Government Employees v. FLRA,
793 F.2d 333, 336-337 ("equivalent status", 336 n.8) (D.C. Cir.
1986), remanded to Authority; decision on remand, 24 FLRA 672 (1986),
aff'd, 840 F.2d 947, 948, 950-951 ("equivalent status", 948
n.1). Consequently, Respondent's statement that CLEAT was not recognized and
that its officials would not be allowed on Respondent's property was wholly
proper. Indeed, even the statement General Counsel referenced that,
Ms. Williamson told Mr. Wards that, ". . . CLEAT was only
interested in his dues. . . ." (General Counsel's Brief,
p. 10), was, in context, as follows: ". . . She then said that
CLEAT was not -- she said, I don't know if you are aware of it or not, but
CLEAT is not a federal agency -- a federal union; they are a state union, and
they have no business in federal government. She said -- as a matter of fact,
she said, 'If they were interested in more than just your dues, they would have
shown you their charter,' . . ." (Tr. 277). This appears to have
been part and parcel of CLEAT's lack of standing, see § 3(4), as a
representative.

General Counsel contends, in effect, that the Griffith investigation
was, in reality, a guise to investigate the organizational activity of CLEAT
and relies on referenced testimony of Mr. Wards and of Mr. Midder
(General Counsel's Brief, pp. 10-11). As to the testimony of
Mr. Wards, it is clear that he was questioned about the disclaimer(8); that he said he put the
disclaimer on his statement because the CLEAT attorney instructed him to do so
(Tr. 277); and that "This CLEAT business" (Tr. 279) referred to the
CLEAT disclaimer. It is true that Mr. Midder said that Ms. Williamson asked,
". . . who was involved in organizing CLEAT, and I told her Sam
Cobb. . . ." (Tr. 335) and that she asked, "who organized
CLEAT and why. . . ." (Tr. 337). On the other hand,
Ms. Williamson testified,

"Q Okay. Did Mr. Midder put this statement from CLEAT -- or that you
learned was from CLEAT -- onto his written statement that he submitted?

"A Yes, he did.

"Q Did you ask him where he got the statement or where it came
from?

"A Yes, I did.

"Q And did he answer you?

"A Yes, he did, He --

"Q And what did he --

"A He said Sam Cobb told him to put it on there."
(Tr. 488).

Ms. Williamson's testimony was more convincing than Mr. Midder's,
not only in this regard, but in other respects, I did not find his testimony
credible, for example, Mr. Midder testified that on November 4, they,
". . . told me if I wrote down the disclaimer, I would be terminated
for not following orders." (Tr. 336) and, ". . . she said that if I
wrote the disclaimer on my statement, I would be terminated for not following
orders." (Tr. 337); but Mr. Midder wrote his version of the
disclaimer on his statement (Res. Exh. 3); Mr. Griffith credibly
testified that, ". . . 'I never told anyone not to include it. I told
-- what I told them was that it was not relevant, that it did not apply in this
situation." I fully credit Mr. Griffith and I do not credit Mr. Midder's
testimony in this regard. Moreover, I conclude that whatever discussion of
CLEAT occurred it was wholly the product of Mr. Midder's use of the CLEAT
disclaimer.

Finally, while it is quite true that Ms. Williamson on
November 3, 1992, wrote a memorandum to Mr. Robert Doering, Manager,
Employee and Labor Relations Division (Res. Exh. 1, p. 9;
Tr. 586), recommending his discharge(9), Mr. Doering concluded that the preponderance of the
evidence did not support the recommended removal of Officer Cobb and this
recommendation was rejected (Tr. 592). The record further shows memoranda
to Mr. Doering on December 4, 1992, recommending the discharge of
Messrs. Midder and Stallings (Res. Exh. 1, p. 9); however,
Mr. Stallings was not given notice of proposed termination until "the
early part of February of '93" (Tr. 127) and the record does not show a
notice of proposed termination for Mr. Midder, although he was not removed
from service until February 5, 1993 (G.C. Exh. 12, Tr. 318).
Mr. Griffith's sole function was to investigate and report his findings
(Tr. 382, 390, 391). Ms. Williamson was assigned to assist
Mr. Griffith in his investigation but she, as Manager of the Security and
Police Service Branch (Tr. 478), had sole responsibility for recommending
any disciplinary action. Consequently, when the investigation concerning a
particular employee appeared to her satisfaction to warrant disciplinary
action, she was free to make a recommendation to Mr. Doering. The time
span between her initial recommendation, the review by Labor Relations before
any notice of recommended action, and notice to the employee of any proposed
disciplinary action, encouraged prompt action even though the overall
investigation had not been completed and was a bulwark to unwarranted action
since later developed information, if any, could temper inchoate
recommendations before notice to employees.

I conclude that Respondent's "Mad Laugher" investigation was wholly
independent of CLEAT representational activity and that this was a legitimate
justification for its action. "Mad Laugher" activity had long ceased to be
either an amusing or acceptable prank but had escalated to a serious and
dangerous level of harassment, confrontation and asserted threats of bodily
harm. Respondent's General Manager directed that the activity be investigated,
those responsible be identified and the conduct be stopped. Mr. Midder was
discharged during his probationary period for: participating in "Mad Laugher"
calls and falsely denying his participation (". . . for making false
statements in matters of official interest, and improper conduct
. . . You denied any participation in the 'Mad Laugher' telephone
calls. Evidence reveals that you were an active participant in making such
calls. Your actions in this matter fail to demonstrate the traits necessary for
continued employment." G.C. Exh. 12).

On the basis of all of the evidence, I conclude that General Counsel
has not proved by a preponderance of the evidence that protected activity was a
motivating consider-ation for the discharge of Mr. Midder. The record
shows that Ms. Williamson recommended discharge of each employee she was
convinced, on the basis of the evidence, had participated in "Mad Laugher"
telephone calls and had lied about it, including a supervisor, Sergeant
Erickson, and had recommended some lesser form of discipline for those who
admitted participation in "Mad Laugher" telephone calls, including another
supervisor, Sergeant Wallace (Tr. 568). Her recommendations were reviewed
by Labor Relations before any notice of proposed discipline was issued, and the
recommendation for discharge of Mr. Cobb was rejected because
Mr. Doering determined that the prepon-derance of the evidence did not
support the recommended removal of Officer Cobb. The focal point for all CLEAT
activity and its officially designated representative, Mr. Cobb, the
record shows, was evaluated entirely on the basis of the "Mad Laugher" activity
- not his union activity. Moreover, the recommended removal of
Mr. Stallings was miti-gated on appeal to a fourteen-day suspension.
Mr. Stallings sought and was given a higher paying job in production -
this with regard to an employee as deeply, and as openly, involved in CLEAT
activity as Mr. Midder, which, again, discounts union activity as a
motivating consideration. Mr. Midder was discharged because he was found
to have participated in "Mad Laugher" telephone calls and lied about his
involvement.

If, nevertheless, even if it were found that protected activity were a
motivating factor, Respondent had a legitimate justification for his discharge,
namely, his participation in "Mad Laugher" telephone calls and his lying about
his involvement. The giving of false testimony under oath by a probationary
employee is, as Respondent concluded, a trait demonstrating his unsuitability
for retention as a police officer. Respondent clearly would have taken the same
action even in the absence of protected activity. Internal Revenue Service,
Washington, D.C., 6 FLRA 96 (1981); Letterkenny,
35 FLRA 113 (1990).

Although Mr. Midder was not discharged because of protected
activity, or if protected activity were a motivating factor in his discharge,
Respondent had a legitimate justification for his discharge and would have
taken the same action in the absence of protected activity, nevertheless, the
record shows, as I have found, that Respondent, through supervisors Sales and
Robinson, told employees, in effect, that CLEAT organizational activity was
responsible for shift changes; that Sergeant Sales told a contract safety
specialist that an employee, not implicated in the "Mad Laugher" activity and
the Complaint with regard thereto having been withdrawn, had been fired because
of activity on behalf of CLEAT; and, further, that Sergeant Sales threatened an
employee for engaging in protected activity.

Having found that Respondent engaged in activity in violation of
§ 16(a)(1) of the Statute, it is recommended that the Authority adopt
the following:

ORDER

Pursuant to § 2423.29 of the Rules and Regulations, 5 C.F.R.
§ 2423.29 and § 18 of the Statute, 5 U.S.C. § 7118, it
is hereby ordered that the Bureau of Engraving and Printing, Western Currency
Facility, Fort Worth, Texas, shall:

1. Cease and desist from:

(a) Interfering with the right of its employees to engage in lawful
organizing activity on behalf of the Combined Law Enforcement Association of
Texas, Communications Workers of America, AFL-CIO (hereinafter, "CLEAT"), or
any other labor organization, by telling employees that their activity on
behalf of CLEAT was to blame for shift changes, that an employee was discharged
because he was a CLEAT organizer, or threatening employees for exercising their
protected rights under the Statute.

(b) In any like or related manner, interfering with, restraining or
coercing its employees in the exercise of the rights assured them by the
Statute.

2. Take the following affirmative action in order to effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute:

(a) Post at its facilities at the Western Currency Facility copies of
the attached Notice on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such forms, they shall be signed by the General
Manager of the Western Currency Facility, and shall be posted and maintained
for 60 consecutive days thereafter, in conspicuous places, including all
bulletin boards and other places where notices to employees are customarily
posted. Reasonable steps shall be taken to insure that such Notices are not
altered, defaced, or covered by any other material.

(b) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Dallas Region, Federal Labor
Relations Authority, 525 Griffin Street, Suite 926, LB 107, Dallas, TX
75202-1906, in writing, within 30 days from the date of this Order, as to what
steps have been taken to comply herewith.

IT IS FURTHER ORDERED that, except as specifically found above, all
other allegations of the Complaints in Case Nos. DA-CA-30471 and DA-CA-30545
be, and the same are hereby, dismissed.

WE WILL NOT interfere with the right of our employees to
engage in lawful organizing activity on behalf of the Combined Law Enforcement
Association of Texas, Communications Workers of America, AFL-CIO (hereinafter,
"CLEAT"), or any other labor organization, by telling employees that their
activity on behalf of CLEAT was to blame for shift changes, that an employee
was discharged because he was a CLEAT organizer, or threatening employees for
exercising their protected rights under the Statute.

WE WILL NOT in any like or related manner, interfere with,
restrain or coerce our employees in the exercise of their rights assured by the
Statute.

_______________________________(Activity)

Date:___________ By:_______________________________

(Signature)
(Title)

This Notice must remain posted for 60 consecutive days from
the date of posting and must not be altered, defaced or covered by any other
material.

If employees have any questions concerning this Notice or
compliance with any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Dallas Region, 525
Griffin Street, Suite 926, LB 107, Dallas, TX 75202-1906, and whose
telephone number is: (214) 767-4996.

FOOTNOTES: (If blank, the decision does not
have footnotes.)

Authority's Footnotes Follow:

1. This case initially encompassed two
consolidated complaints: DA-CA-30471 and DA-CA-30545. After the close of the
hearing in this case, Charging Party Frank Wards and the General Counsel each
filed motions seeking to withdraw the charges in DA-CA-30471. The General
Counsel further sought to amend the consolidated complaint to reflect that the
charges filed by Charging Party Ray Midder in DA-CA-30545 are unchanged. Noting
that the actions sought by the General Counsel were consistent with the motion
filed by Wards, the Judge granted the General Counsel's request. Accordingly,
only DA-CA-30545 is now before us.

2. Although the Judge rejected these
claims, the Judge found that the Agency violated section 7116(a)(1) of the
Statute when certain of Respondent's agents: (1) told employees that their
protected activity was to blame for shift changes; (2) told employees that an
officer had been discharged because he had engaged in protected activity; and
(3) threatened an employee for engaging in protected activity. As no exceptions
were filed regarding these aspects of the Judge's decision, they are addressed
only in connection with the issuance of an Order and Notice.

ALJ's Footnotes Follow:

1. For convenience of reference,
sections of the Statute hereinafter are, also, referred to without inclusion of
the initial "71" of the statutory reference, i.e., Section 7116(a)(2)
will be referred to, simply, as, "§ 16(a)(2)".

2. In 1992, the Bureau filed a unit
clarification petition in Case No. WA-CU-30014, and other cases, in which it
contended that the existing units in its District of Columbia Currency Facility
(DCF) should be clarified to specifically exclude WCF employees. On
October 2, 1992, American Federation of Government Employees, AFL-CIO,
filed a representation petition, Case No. DA-RO-30001 (G.C. Exh. 2), to
represent WCF police in a separate unit, i.e., that WCF should be
severed from the existing unit represented by Local 29. CLEAT filed
a petition to intervene in Case No. DA-RO-30001. Following the Regional
Director's dismissal of the Bureau's clarifi-cation of unit petitions and
dismissal of the petition in Case No. DA-RO-30001, because he found no
circumstances to justify severance, CLEAT's application for review was granted;
the unit represented by Local 29 was clarified to exclude the police at
WCF and Case No. DA-RO-30001 was remanded to the Dallas Regional Director to
determine whether the petitioned-for unit is appropriate. 49 FLRA
No. 15, 49 FLRA 100 (1994).

4. Similar statements were attributed
to Inspector Robinson, see, for example: Ms. Howard (Tr. 197, 198);
Mr. Knickerbocker (Tr. 164-165); Inspector Robinson was not asked
about statements attributed to him. Accordingly, I find that Respondent,
through Inspector Robinson, told employees, in effect, that CLEAT was to blame
for shift changes.

In addition, Mr. Barnes testified that on Friday,
February 11, 1994, after he had met with FLRA counsel, he had gone to the
police locker room where Sergeant Sales said to him, "Am I ready to go over and
end my career on Monday -- something to that effect"; that he, Barnes, made no
reply but went back and reported the matter to FLRA counsel (Tr. 181).
Sergeant Sales was not asked about this statement. Accord-ingly, I further find
that Respondent, through Sergeant Sales, threatened an employee for engaging in
protected activity.

5. Sergeant Erickson, at his request,
moved to the warehouse rather than being assigned duties in the police
department. (Tr. 497).

6. Moreover, as the Authority further
stated in Letterkenny, "If the General Counsel fails to make the
required primafacie showing, the case ends without further
inquiry." (35 FLRA at 118). Accordingly, when the General Counsel
fails to make a primafacie showing that the discipline was
invoked because the employee engaged in protected activity, that ends the
inquiry and the analytical framework of Letterkenny need not be applied.
U.S. Department of Treasury, Internal Revenue Service, Washington, D.C.,
41 FLRA 1212 (1991); United States Customs Service, Region IV,
Charleston District, Charleston, South Carolina, 42 FLRA 177
(1991). Here, General Counsel made a primafacie case that
protected activity was a motivating factor in the discharge of Mr. Midder.
Whether Ms. Williamson knew that Mr. Midder was engaged in
organi-zational activity, as she testified (Tr. 495), has no bearing on
what General Counsel has shown in his case in chief. To be sure, even if he
makes a primafacie case that protected activity was a motivating
factor, nevertheless, General Counsel must still prove by a preponderance of
the evidence that the, "allegedly discriminatory action was motivated by
consideration of protected activity." (Letterkenny, 35 FLRA
at 122). Once General Counsel makes out a primafacie case,
the burden of going forward, but not the burden of proof, shifts to the
respondent. In going forward, a defense could be that protected activity was
not a motivating consideration although the distinction between that defense
and proof that the respondent would have taken the same action in the absence
of protected activity may be blurred.

8. Properly understood, while it
"blows a lot of smoke", the CLEAT "Constitutional Protection Statement" (G.C.
Exh. 4) adds nothing of substance to a Kalkines Statement (Res.
Exh. 2) which begins with the grant of immunity, i.e.,
". . . my answers, may not be used against me in a criminal
prose-cution", and notice that he, or she, may be subject to disciplinary
action for failure to answer questions relating to the performance of duties as
an employee. The CLEAT statement states, "It is my belief and understanding
that the department requires this report (statement) solely . . . for
internal purposes . . ." and "For any and all other purposes, I
reserve my constitutional right to remain silent. . . ." (G.C.
Exh. 4).

The trouble with the CLEAT statement was that it was not well
understood and was conducive to misapplication as a right to remain silent in
administrative as well as criminal proceedings. Thus, Mr. Griffith stated
in his report, "The officers who chose to ignore the mandatory cooperation
warning by executing their right to remain silent . . . may have in
fact hampered this investigation. . . ." (Res. Exh. 1,
p. 8).